English Legal System and Skills Case Analysis and Statute Analysis - Assignment Example

English Legal System and Skills Case Analysis and Statute Analysis Assignment January 6, al Affiliation The case of Regina v Hilda Gondwe Da Silva was first heard in the Middlesex Magistrates Court. 2. The judge in the first instance was Longmore J1 3. The decision of the first court convicted Hilda Gondwe Da Silva of assisting a person to hold a criminal conduct benefit while there were suspicions that the said person had been involved in criminal conduct. Throgh this action, Da Silva acted against the Criminal Justice Act 1988 section 93 (I) (a). Hilda Gondwe Da Silva was also accused of deceptively accepting money transfers together with his husband Mario Da Silva in counts I to 10. Da Silva’s husband operated an account that was used to pay three ghost workers, thus receiving payments dishonestly. 4. In the court, the appellant was Hilda Gondwe while the respondent was in Regina. 5. The appeal grounds were that the aspect introduced by the word “suspect” and its associates, within the context of convicting Da Silva introduced the element of likelihood and this means other significant facts exist. Here, the suspicion does not have to be clear or firmly stranded and focussed on specific facts. This together with the words such as fleeting thought would easily mislead since anyone temporarily holding a suspicion yet managed to honestly dismiss it would not be viable for conviction like was the case with Da Silva. 6. The court of appeal therefore dismissed the appeal on the grounds that even though the case used the word “suspicion”, it was of a settled nature since the defendant did encourage a suspicion, but later dismissed it honestly from their mind as unworthy or as being outweighed by other deliberations. Here, the court defined suspicion with regards to criminal and civil matters pertaining money laundering since no legal requirement existed in support of reasonable grounds for suspicion. 7. The Court of Appeal gave its judgment on July 11, 20062. 8. The offenses that count 14 and 15 against the defendant are those dealing with collusion with another person to ensure that they retain the advantage of criminal behaviour either through suspicion or knowledge that the other person is involved in crime. Count 14 concerned the money paying the wages for the alleged sisters while count 15 dealt with a second blank account since 2001 to 2003. The two counts justified concealment of criminal conduct. 9. The council for appellant wished to extend the grounds given to appeal using the argument that the word reasonable, in the Crown Court’s decision, should have preceded the word suspecting. In his reasoning, a facilitator cannot be guilty through suspicion of having committed a crime, yet without any rational grounds for misgiving. Mr Cifonelli believed it was impossible for parliament to have supposed so. a. Referring to the Criminal Justice Act section 93C, however, played the crucial role of disregarding Mr Cifonelli’s argument by emphasizing that appellant was guilty for having colluded with her husband knowing very well that he money from the two concealed accounts was the proceed of a criminal conduct. b. Express reference is the statutory interpretation used by the Court of Appeal regarding the argument by the counsel. The court used the explanation of the 1988 Act, section 93C to elaborate its judgment with regards to section 93A (I) of the Act. c. Therefore, the Court of appeal supported its conclusion using the blind-eye knowledge that defies the dictionary definition of suspicion to define suspicion as based identified relevant facts and a thoughtful decision to avoid affirming its existence. In the case, the Court of appeal identified the existence of significant facts that are resolutely targeted and based on particular facts. Similar reasoning was used in the case between Barlow Clowers International Ltd v Eurotrust International Ltd (2006) involving money laundering. 10. The Court of appeal did not agree with the appellant’s counsel that failure to imply a requirement for reasonable grounds for suspicion would result to inappropriate convictions because such a requirement would result in annotating section 93A (I). Consequently, the prosecution was required to prove that Da Silva’s control or retention of property obtained from criminal conduct was under her awareness that her husband benefited from crime. Another reason is that the Court sought for a direction to the jury, and this was obtained from the meaning of suspicion found in the Chambers’ dictionary. 11. In R v Gillard (1988)3 the conviction against Gillard was sustained with the court arguing that the intention to attack the doorman by directly or indirectly administering harmful gas was enough reason to mean harm4. In this case, the meaning of the term administer was defined in relation to the context of the case since either way, the victim would end up ingesting the gas and harmed. In the Da Silva case, the Gillard case is referred to emphasize the conclusion that no ordinary English word is not viable for a meaning subject to the case at hand. However, such explanations have to be done such that the meaning is correct. 12. Mrs Da Silva’s argument that she was unaware of the crimes of her husband was unconvincing, and Mrs Da Silva had facilitated the payment of the proceeds of her husbanding into bank accounts that she had control. 13. (a) This is not part of a rationale for the decision since it was being used by the appellant’s counsel to argue that the meaning of the word suspecting and reasoning only made Da Silva a suspect and not guilty. (b) This is part of the rational for the appeal court decision and was used to prove that Mrs Da Silva’s argument of being unaware of her husband’s deeds was misleading (c) Mrs Da Silva’s case had firm grounds to convict her of colluding with her husband to pay two accounts of non-existing employees. (d) Mrs Da Silva’s silence in court provided the Crown with a strong basis for the court since silence demonstrated acceptance of guilt. In addition, remaining silent indicated that Mrs Da Silva wanted to protect her husband5. (e) Section 93A (1) (a) of the Criminal Justice Act 1988 supports ratio decidendi. 14. Under the Criminal Justice Act 1988 section 93A (I) (a)6 Rose’ act of holding his brother’s money meant that she retained control on his behalf. This is because no withdrawal of the amount would be done without her authorization or visit to the bank7. Like Mrs Da Silva, Rose takes full control of money that resulted from criminal conduct, though unware of the source and of the fact that John’s request was a way of concealing his proceeds from criminal activities. In this case, it would not be easy to prove that Rose was guilty since she did not know or suspect that John was engaged in crime or had benefited from criminal conduct. However, Rose reveals the fact that she had recently seen her brother in the company of unpleasant persons at the gym and this provides evidence that John was had partnered with these friends to rob the bank. In her case, suspicion was enough for her to have not trusted his request and instead questioned it which she did not8. 15. With reference to Regina v Da Silva case, Sarah colluded with John in the crime. Sarah did not question John regarding the source of his money, why he did not put it in his own account or that of his wife, and why she was the person to handle his money despite him handling it in the past. In this case Sarah, should have sought for explanations as to why John did not want to have his own money in his account. Just like Mrs Da Silva, it is not convincing that Sarah could argue she knew nothing about the source of the source of the money. In order to prove her participation, the prosecution had to identify the main wrong so as to determine the specific accessorial liability rules9. Through her unquestioning or unprobing acceptance to deposit John’s money, Sarah acted dishonestly and this implies that she simply did not act as an honest person given that she was aware of and understood John’s financial and employment circumstances back then. According to the law, honesty is not measured in scales of higher or lower values of a person’s moral standards. On the contrary, appropriating John’s property makes it impossible for Sarah to escape dishonesty even though she saw nothing wrong in her action. If Sarah was an honest person, she should have accepted the request upon the provision of very compelling reasons by John. However, Sarah’s dishonesty drove her to participate in a transaction that involved misapplication of bank assets to harm the bank customers and the bank like was the case in Twinsectra v Yardley10 where dishonesty was proved to exist for purposes of dishonest assistance in a trust breach11. This argument does not make irrelevant the beliefs and knowledge of others since cases where a defendant trusts that the transaction is legal, dishonesty does not apply unless fraudulence is proven like was the case of Heinl v Jyske bank where the manager had siphoned about £71.5 million through loans to companies of his own making12. Part II: Statute Analysis 1. The short title for the Act is “the act” 2. The long title of the act is “The Criminal Damage Act 1971” 3. The act came into force on 14th July 1971 4. Section I of the Criminal Damage Act 1971 contains three offenses. The offenses are damage or destruction of another person’s property unlawfully; intentions of destruction or damage of any property unlawfully; and destruction or damage of property by fire. 5. Under the Criminal Damage Act 1971 a property would include a rare butterfly caught by Miriam in a net and put in a jam jar, a fish in a river at the bottom of James’ garden, and a wile pheasant that Tom shot and put in his car. The qualification for any property under the criminal damage act 1971 is that it has to be tangible or real13. 6. a. the act of Maureen scratching his husband’s girlfriends car is an offense under s.1(1)14 (b). Gervais action of burning down a barn is an offense under s.1 (3) (c) Harry’s action of dropping down a block of concrete to a car below a motorway bridge is an offense under s.1 (2) (d) Kate’s threat to slash the tyres of Gary’s car is an offense under s.1 (2) (e) Mick’s intention to break the window to access Evan’s house is an offense under s.1. (2) 7. Arthur who deliberately cuts the brake cables on his car knowing so well that his wife Susan was about to drive is guilty of the offence of damaging property that then endangered the life of his wife. Upon conviction, Arthur’s accusation result to him being liable to imprisonment for life. Life imprisonment accompanies all intentions to destroy or damage personal or another person’s property that involves section 1(2). In his case, Arthur intended to endanger the life of his wife. 8. Damien in this case is only a student at the university. The university, depending on the ownership, is either private or public property. However, Damien has no permission to graffiti the university entrance and only acts to satisfy his perception that with the graffiti the wall would be used to express art. According to section 1(1)15 of the criminal damage act 1971, Damien’s art on the wall causes moderate damage. It is not right to take the paint cans from him, but it is right to take the cans and Damien and report the offense. This way, Damien will plead guilty of the offense and fined depending on the damage caused. For instance, if the damage caused is less than £5000, Damien’s fine will be up to £5000 and if more than, then Damien will be referred to the Crown Court for tougher sentences. The decision of this case is comparable to the case of R v Verdi [2005] 1 Cr.App.R.(s) 43; [2004] EWCA Crime 148516 where the defendant painted graffiti on tube trains causing approximately £10,000 million damage. The defendant was jailed for 18 months. The R v Dolan & Whitaker [2007] 29/10/0717 case also acts in a similar capacity to support criminal damage resulting from graffiti artists who tagged railway carriages and buildings and was sentenced for 15 months and 12 months. 9. Jason is guilty under section 1 (1)18 of the criminal damage act 1971 for maliciously smashing the windows of expensive cars in his neighbourhood at night using a hammer. This is criminal damage to a vehicle19.He has succeeded in the past but is caught one night. In this case, PC Evans is authorized to force her way into Jason’s apartment even though she had a warrant of arrest and not a search warrant. In this case, Evans acted to prevent Jason from eliminating any evidence and the faster the search was conducted the better since Jason refused to open the door to his house. The constable is also right in seizing the cricket bat and a car jack which she believed had been used to smash the car window. Searching the property aligns with the requirements of an arrest warrant that authorise searching the people on the premises in the case of Jason. In addition, the police constable is had to conduct the unwarranted search since the items linked to the smashing of the windows was treated as a weapons since they had been used in a serious crime for many days. Upon arrest, Jason is should also be frisked to search for anything that might assist him in to cause further harm or to escape. The forced entry and unwarranted search on Jason’s premises does not invade on his privacy. On the contrary, PC Evans had all rights to arrest Jason since she had seen him smashing a Mercedes Benz and causing tangible damage on the car20. She had also been tipped off and she had reasonable grounds to enter the premises without Jason’s consent. Based on the criminal damage act 1971, Jason destroyed the property of others and was guilty of the offense of criminal damage. Consequently, failure to open the door to his premises only meant that he was not willing to comply with the police. Since the property being destroyed belonged to another person, Jason demonstrated recklessness and this would significantly increase his sentence charges for criminal damage. 10. Under section 1(1) of the criminal damage act 1971, Josh is guilty21. His actions are not lawfully excused and they end up damaging the tyre of Robert’s car. Josh only acts from jealous but has no reasons supporting that Robert had an affair with his wife. In this case, Josh was reckless22 to the consequence of the damage resulting from flattening the tyre and the fact that the flat tyre would endanger Robert’s life. 11. Tony has not committed a crime according to section 1(2) of the criminal damage act 197123. He is not guilty because it is not shooting away from the dog that causes him injury but the bullet that endangered the life of the dog. Tony would be guilty if his shooting was directly to the dog or something that then hit the dog. His intentions were not to damage or destroy the dog but to scare him away so that he would stop frightening the cows that became charged and he feared for their lives in case they careered down the cliff. In addition, Tony uses a licensed gun to protect his property from the harm caused by the dog. Consequently, he had all rights to use the firearm to protect his property or himself. Tony’s case contradicts R v Kelleher [2003] EWCA Crim 352524 case where the defendant deliberately knocked the head of lady Thatcher’s statue in an art gallery driven by his believe that Thatcher’s policies resulted to a dangerous world and hence causing destruction to the world. He did not act in order to protect the property but to destroy it25, unlike Tony who acted to protect the dog only to shoot it by mistake. 12. Nick’s associates include: a. Barbara, his grandmother b. Caroline the spouse of Nick’s Brother Henry c. Nelly is Nick’s daughter and child 13. I answered the questions using the presumption that Nick’s family members or spouses to his brothers or were his associates and not friends. Bibliography C H Jones, Breach of Fiduciary Duty (newsquarechambers.co.uk 2002) accessed 6 January 2014 Criminal Damage Act 1971 s 1(2) (b) E Finch; S Fafinski, Legal Skills (4th, Oxford University Press, Oxford, United Kingdom 2013) 121 Force Crime Registrar, Arson and Criminal Damage (www.gov.uk 2014) accessed 6 January 2014 J ORiordan, A2 Law for AQA (1st, Heinemann Educational, Oxford 2003)130 M Brindle QC, Trust Design, Tax Planning and Money Laundering: Parts 1 and 2 [2011] CA 1, 4 M Brindle QC, Money Laundering, Tax and the Criminal Law [1999] AC 1, 4 M Zander, Cases and materials on the English legal system (1st, World University, London 1973) 526-707 N Monaghan, Criminal Law (3rd, Oxford University Press, Oxford, United Kingdom 2014) 262-270 P Birks, Breach of Trust (1st, Oxford University Press, Oxford 2003) P Kowalick, Silence May Be Golden No Longer (afp.gov.au 2000) accessed 6 January 2014 R v Kelleher [2003] EWCA 3536 (CA) R Huxley-Binns, Criminal Law: Law Revision and Study Guide (4th, Oxford University Press, Oxford 2014) 156-159 Regina v Da Silva [2006] EWCA Crim 1654 (11 July 2007) R Card, R Cross, P Asterley Jones, Card, Cross and Jones criminal law (16th, Oxford University Press, Oxford, United Kingdom 2012) 210-214 S Graca, K Lawton-Barrett, M, ONeill, S Tong, R Underwood, Blackstones Handbook for Policing Students 2013 (1st, Oxford University Press, Oxford, United Kingdom 2012) 459-464 Slaughter and May, Civil Liability for Money Laundering [2009] The Leg Compl Bulletin 1, 1-2 The Crown Prosecution Services, Criminal Damage - Simple (cps.gov.uk 2011) accessed 1 July 2011 Twinsectra Limited v Yardley and Others [2002] UKHL 12 Read More